Levity and Danger

Andrew Sullivan has been doing a very funny series on “Worst 80s videos;” I think “We Built This City” by Jefferson Starship (nee Airplane) wins, with a close second from Journey. Of course, everything’s coming from YouTube, whose potential copyright liability is a hot topic in the IP blawgosphere. But perhaps even more striking here is the potential liability of sites that link to infringing content on YouTube sites. The legal landscape is complex, and as Stacy Dogan has noted, there’s a wide range of ways courts may characterize the links when assessing secondary liability:

In the narrowest view, a link is no more than a citation, the relationship between linking and linked-to site no more significant than that between a scholar and the material that she cites. In the broadest view, the link achieves the “functional equivalent of transferring” the linked content, with the linker acting as a provider of the linked-to material. The choice between these competing views has obvious import in evaluating the legal responsibility of those who link. (from Infringement Once Removed: The Perils of Hyperlinking to Infringing Content, 87 Iowa Law Review 829 (2002))

It’s a pretty complicated area, and the hacker magazine 2600 learned the hard way that a link to material that helped people circumvent technological protections of copyright was itself a DMCA violation. [I had earlier, mistakenly, called this a criminal offense; see comments below.] The question after Grokster may well be whether a hyperlink to infringing content is a way of “inducing” infringement.

In any event, Google (which recently took over YouTube) doesn’t appear to want to take any chances. It’s a lot more willing to take on publishers than the big audiovisual content owners. Which raises one more interesting question: will the movie industry exert as much control over Google/YouTube as the music industry exercises over iTunes? And might it be a form of copyright misuse for big content owners to leverage control over copyrighted works into control over all sites that categorize or comment on (fragments of) their works?